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"Incarcerated members of the LGBT community and of other vulnerable groups are especially targeted for sexual assault. If prisons fail to protect vulnerable inmates, the inmates must have access to the courts."

December 10, 2012

Susan Sommer

"Incarcerated members of the LGBT community and of other vulnerable groups are especially targeted for sexual assault. If prisons fail to protect vulnerable inmates, the inmates must have access to the courts."

(New York, December 10, 2012) — Late Friday, Lambda Legal filed a friend-of-the-court brief in the U.S. Supreme Court on behalf of a federal prison inmate, Kim Millbrook, who sued the U.S. government after claiming he was sexually assaulted by prison officers at the Lewisburg, Pennsylvania federal penitentiary.

"A person’s basic human rights aren’t forfeited when they’re incarcerated. Access to the courts is crucial to stem an epidemic of sexual assaults against inmates," said Susan Sommer, Director of Constitutional Litigation at Lambda Legal. "Prison officers are not above the law. The U.S. government is responsible for making sure that federal prisons are safe and that inmates’ rights are being protected."

"Incarcerated members of the LGBT community and of other vulnerable groups are especially targeted for sexual assault. If prisons fail to protect vulnerable inmates, the inmates must have access to the courts," Sommer adds.

According to court papers filed by Millbrook, in March 2010, he was transferred from the Terre Haute federal prison to Lewisburg following a sexual assault by a prison staff member and threats against him. Millbrook claimed that, after telling Lewisburg prison authorities of his history and need for protection, he was nonetheless placed with violent cellmates, who, within days of his arrival, attacked him. After defending himself against a violent cellmate, an officer told him to stop complaining about his safety and that "we are going to show you what Lewisburg is about." The officer took Millbrook to a camera-less area of the basement, where two other officers joined them. While one held Millbrook in a choke-hold and another stood look-out, the third forced Millbrook to perform oral sex. The officers threatened to kill him if he told anyone of the assault.

In January 2011, Millbrook filed a tort claim against the U.S. government in the U.S. District Court in Pennsylvania. Both the District Court and the Third Circuit Court of Appeals concluded that Millbrook’s claim was barred under the Federal Tort Claims Act, which provides a path to sue the federal government if a federal law enforcement officer, defined as any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of federal law, commits an assault or battery on the job.

In the amicus brief filed today, Lambda Legal argues that Millbrook’s claim is valid under the Federal Tort Claims Act and that the immunity waiver for law enforcement officers is in place to protect people from abuse of power. When Congress unanimously enacted the Prison Rape Elimination Act in 2003, it recognized that inmates are being sexually assaulted by prison officers and other inmates at alarming rates, and that such abuse is sometimes used to threaten and control inmates. Because of this abuse of power, it is critical for inmates to have access to the courts to protect their rights.

Susan Sommer, Director of Constitutional Litigation, is handling this matter for Lambda Legal. She is joined by co-counsel Douglas Hallward-Driemeier and Julian Helisek of Ropes & Gray LLP.

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Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.